Friday, June 03, 2011

Love Fred Thompson, Hate This Idea

Under the idea introduced in 2006 by Stanford University consulting professor John Koza, states that join the NPV compact pledge to give all of their electoral votes to the presidential candidate who wins the national popular vote - even if a majority of the state’s voters supported another candidate. If a group of states with an accumulated tally of 270 electoral votes - the bare majority - sign on, the practical effect would be that the popular-vote winner instantly becomes the Electoral College winner as well.

For all the reasons the Founders created the Electoral College, I support the Electoral College and oppose this "national popular vote" compact. It is another in a long line of bad ideas that move us from a federal republic with independent, sovereign states to a national government wherein the states are superfluous.

I predict, though, that this compact would be thrown out the first time a Republican wins the national vote and California votes for the Democratic candidate.

10 comments:

I was supportive of this idea...until a few days after the 2000 presidential election.

USA Pravda, aka USA Today published that map showing by county who won what (and established the Red = Republican, Blue = Democratic protocol). ALGORE won the popular vote by winning about 20 large cities. That should scare the living hell out of any sane man and reminded me of the wisdom of the Founding Fathers.

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." (boldface mine)Looks entirely legal to me, and its enforceable if people want to enforce it, I guess.

There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector's own political party. The electors are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.

If a Democratic presidential candidate receives the most votes, the state's dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting bloc. If a Republican presidential candidate receives the most votes, the state's dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting bloc. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party's dedicated activists.

The pledge is non-binding, though. Every so often we find an electoral voter choosing to vote for someone else.

I guess my question is *WHO* chooses the delegates. Today, the delegates are pretty much somehow appointed by the candidate who wins. It isn't too difficult for the winner to have a list of people who can be pretty much counted on to vote "properly."

Are we going to change things so that the state *legislature* appoints the delegates based on the nationwide popular vote? Really? Would you trust the Illinois state legislature to do this? I can *easily* imagine this going wrong and the "wrong" national candidate winning in the electoral college because some large state whose state legislature was controlled by the other team picks the delegates.

I had two questions:(a) Is this legal/constitutional? and(b) Is this enforceable

The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as “plenary” and “exclusive.”

Section 1 of Article II of the U.S. Constitution says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

The wording “as the Legislature … may direct” in the Constitution is an unqualified grant of power to the states. This constitutional provision does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes. States may exercise this grant of power in any way they see fit, provided only that they do not violate other specific restrictions contained elsewhere in the Constitution.

As the U.S. Supreme Court stated in the 1892 case of McPherson v. Blacker: “The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text.”

The Court continued: “In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.

Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

The bill says: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term."

The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

“When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:“A compact is, after all, a contract.”

The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.